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CACV 117/2022
[2022] HKCA 1170
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 117 OF 2022
(ON AN APPEAL FROM HCAL NO. 2379 OF 2018)
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Before: Hon Chu and M Poon JJA in Court
Date of Judgment: 12 August 2022
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JUDGMENT
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Hon Chu JA (giving the Judgment of the Court):
1.On 20 May 2022, this Court handed down our judgment ([2022] HKCA 673) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) made on 25 March 2022.
2.On 16 June 2022, the applicant filed a notice of motion applying to set aside our order of 20 May 2022. The notice of motion asked for a reconsideration of the case with an oral hearing, and set out the following grounds in support of the application:
“(1) The Judges have erred in determining that the Judge had not failed to appreciate the significance of my non-refoulement claim. The lack of assistance provided to me is an error of law or procedure, evidence of procedural unfairness, or failure to adhere to a high standard of fairness. This is because non-refoulement claims are life and limb cases and should be assessed cautiously, considering my vulnerability and disadvantage.
(2) I was unaware that I should have consented to the disposal of this appeal by hearing on paper because the person who helped me to submit this appeal and submission is not a professional person but a friend who does not know any legal jargon. Now another friend is trying to help me but even this person is just trying his best to elaborate on my case problems, and we are still not able to find the legal errors in the decisions of the Board and the decision of the Director,
(3) It is unfair to expect an uneducated person to know the law of a foreign country, would be able to find easily legal advice, or legal representative, or go through a legal process while do not have any resource of income and not eligible to do so. A non-refoulement claimant is a vulnerable individual and will require reasonable assistance from time to time, yet such was not provided to me and was used against me when I could not comply.
(4) I was deprived of the right to make full grounds for appeal. By not having the Determination translated or read back to me, I could not have understood the Determination to the fullest, and is unfair to me. I had to submit everything in English because the Court would not accept grounds written in my language, otherwise, I would have done that.
(5) Instead I had to ask for help without having the ability to verify if everything is correct and true. The fact that oral hearings were arranged with interpreters means that the Court recognizes the significance of language assistance, and therefore such assistance should extend to understanding the judgment. This is contrary to the high standard of fairness required by law if this results in a deprivation of the right of a litigant to seek further avenues of appeal.
(6) I reiterate the authorities, despite knowing of my language incapability, have not made reasonable arrangements to enable me to understand the content of the judgments and thereby deprive me of the right to seek a further avenue of appeal. This is a wrongful exercise of case management power and I verily believe this should be looked into carefully as case management power should extend to how a judgment is delivered.
(7) I was able to file documents in English through a friend who helped me to prepare Form 86 and the affirmation for judicial review. But it does not mean that apparently, I always can find someone to assist me with interpretation/translation and to deal with English documents. As such I am only making this affirmation to the best of my knowledge.
(8) A judgment that has been made with the lack of evidential consideration of issues raised in Court should be deemed an error judgment.
(9) If a litigant has not been informed fully of his rights and is allowed to be beard with such assistance, then it cannot be said that the assistance cannot be of any use as it was not even granted in the first place.
(10) The Judges should not determine the Prospect of success at this stage as I have been deprived of making an entire appeal and putting forward my grounds fairly without the help of language assistance. It is not the Judges’ power to determine what I am putting in as grounds and what I am not, and therefore administratively speaking the Judges could not have possibly made a finding on the prospect of success based on this ground.”
3.The applicant has put in a written submission to support his application for a reconsideration of his case based on unfairness and unreasonableness. In gist, his arguments are:
(1) The Court has not considered his grounds of appeal thoroughly.
(2) It is not true that he understands the Board’s decision. While his friend had explained it to him, he cannot understand the legal jargon without the help of legal representative. The Court should not have expected him, as a layman, to comment on the findings when he cannot understand the jargons.
(3) He could not request an oral hearing in the notice of appeal as he was unaware of it, and the person who helped to submit the documents was not a professional person.
(4) The lack of language assistance is discriminatory and unlawful as it deprives him of the right to lodge a proper appeal and puts his case at the risk of being dismissed due to lack of grounds. The authorities should take into account that English is not his first language, he has no right to work in Hong Kong and thus cannot hire proper help, and he is traumatised by the problems in his home country.
(5) The decision of the Board was never translated or read back to him. It is the basic right of a litigant to understand what was decided against him so that he can make a full review. Deprivation of such right is equivalent to deprivation of the right to seek further avenues of appeal or review.
(6) The same goes for the Judge’s decision. Without knowing the reasons, he was deprived of a reasonable opportunity to point out errors in full. As a result, the burden was shifted to the Judges to help determine the grounds. It is not true he can find people to assist with interpretations/translations and dealing with English documents at all times. This also does not mean the Court or the Board does not owe a duty of care to self-represented litigant.
4.We note that the applicant has asked for an oral hearing to deal with this application. However, having considered the notice of motion and the written submission and in view of the total lack of merits of the application, we consider it is appropriate to deal with the application on the papers without an oral hearing, and have proceeded to determine the application on the basis of the documents in the case.
5.The facts and background of this case have been set out in our judgment. We will not repeat them.
6.For the reasons set out below, the applicant’s application by notice of motion (and reiterated in his written submission) for a reconsideration of his appeal or case is out of order and plainly untenable.
7.When the applicant filed his notice of appeal on 12 April 2022, he had signed a written confirmation which states that: “I consent to the appeal to be disposed of on paper by the Court without oral hearing.” It is pursuant to his own election that this Court had proceeded to consider and determine his appeal on the papers without setting it down for an oral hearing: see [2] of our judgment.
8.By our judgment, the applicant’s appeal has been determined and concluded. This Court’s order was perfected and sealed, and a copy had been sent to the applicant. In the circumstances, this Court does not have jurisdiction to re-hear or re-consider the appeal. The notice of motion ought therefore to be dismissed.
9.We would further point out that:
(1) Given that it is the applicant’s own election to have the appeal disposed of on paper without an oral hearing, the contention in the notice of motion and the written submission that he and his friend did not know that he had to request for an oral hearing is entirely misplaced; and
(2) The complaints about lack of language and legal assistance were never raised in the application for leave to apply for judicial review, despite he had advanced numerous grounds in support of the application (see [8] of our judgment). Nor were they raised in the appeal (see [10] and [11] of our judgment). The present application to re-open the appeal on entirely new grounds is not only out of order as a matter of jurisdiction and procedure, but is also an abuse of process.
10.For the above reasons, we dismiss the notice of motion.
(Carlye Chu)
Justice of Appeal |
(Maggie Poon)
Justice of Appeal |
The applicant, unrepresented, acted in person.
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